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108 Cards in this Set
- Front
- Back
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What is the basis for NY practice rules? |
Civil Practice Law and Rules (CPLR) |
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What is the only trial court that has general subject matter jurisdiction? |
NY Supreme Court |
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What is a dismissal for forum non conveniens? |
When a court, in its discretion, dismisses a case because the defendant lacks any substantial nexus to NY |
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Where must cases for money damages in tort or contract against the state of NY be brought? |
NY Court of Claims |
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Can employees of the state or subdivisions of the state be sued in the NY Court of Claims? |
No must be in Supreme Court |
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The Supreme Court has exclusive subject matter jurisdiction over what? |
1) Matrimonial Actions 2) CPLR Art. 78 proceeding (judicial review of NY state administrative actions) 3) Declaratory judgment action |
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What is the maximum monetary jurisdiction for a county court? |
$25K |
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What is the maximum monetary jurisdiction in the justice courts? |
$3K |
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When does the statute of limitations generally begin to run? |
The date of discovery of injury |
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How does one satisfy the statute of limitations? |
Action must be commenced no later than the last day of the prescribed period of limitations - commencement consists of filing |
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What is the S/L for medical malpractice cases? |
2.5 years from the date of malpractice - date of discovery is generally irrelevant |
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What is the continuous treatment rule? |
S/L is tolled while patient continues to receive treatment for the condition that gave rise to the malpractice |
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What is the requisite S/L for malpractice involving foreign objects? |
When a doctor is responsible for introducing a foreign object into the plaintiff's body and leaves it behind the statute of limitations is the longer of: 1) 2.5 years from operation or 2) 1 year from discovery or from when reasonably should have discovered |
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How long is the statute of limitations for a claim of economic injury arising out of non-medical professional malpractice? |
3 years running from the date of the malpractice |
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If someone suffers bodily injury as a result of non-medical professional malpractice whatis the statute of limitations? |
3 years running from the date of bodily injury |
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What is the statute of limitations for a personal injury or property claim against a municipal defendant? |
1 year and 90 days |
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What is the notice of claim prerequisite for municipal defendants? |
Before a tort action against a municipal defendant, plaintiff must serve a notice of claim on potential municipal defendant no later than 90 days from the date of the accident - must wait 30 days before commencing action |
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What are the requisite S/L for products liability cases? |
Negligence claims - 3 years from P's injury Strict Products Liability - 3 years Breach of warranty - 4 years against particular D against whom breach of warranty claim arises |
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What is the S/L for indemnity claims? |
6 years |
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What is the S/L in toxic substances cases? |
3 years from: a) discovery of injury or b) from date when P should have discoveredd |
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When do S/L toll for D's absence? |
1) If D is not in NY when cause of action accrues, S/L does not run until D comes to NY 2) If D leaves NY for at least 4 months after accrual of cause of action S/L tolls for entire period that D is gone |
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What is the exception to the 4 month absence tolling? |
Not available for tolling if P has basis for PJ over D that is not rooted in D's presence in NY |
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What is the rule regarding tolling of S/L for infants and others with legal disability for S/L 3 years or longer? |
S/L is tolled until disability ends and p gets longer of: 1) The usual S/L running from usual accrual or 2) 3 years from date disability ends |
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What is the rule regarding tolling of S/L for infants and others with legal disability for S/L less than 3 years? |
P gets statutory time running from when disability ended |
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What is the S/L for wrongful death cause of action? |
2 years from date of death but must show that decedent possessed a timely cause of action at the time of death |
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What is the S/L for a survival claim? |
If P dies before S/L expires, estate representative gets longer of: 1) Time remaining on the applicable S/L running from the usual date of accrual or 2) 1 year from P's death |
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What happens to S/L if potential D dies before S/L expires? |
18 months are always added to relevant limitations period |
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What is the 6-Month grace period for S/L? |
If an action is timely commenced but is thereafter dismissed before trial AND at the time of dismissal the S/L has either expired or has less than 6 months remaining, P gets 6 months from the date of dismissal to re-file the same action |
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What are the 4 types of dismissals to which the 6-month grace period is not applicable? |
1) Dismissal on merits 2) Voluntary discontinuance by P 3) Dismissal resulted on P's neglect to prosecute and a general pattern of dealy 4) Lack of PJ |
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Which S/L will apply if P was a non-resident of NY when the out-of-state claim arose? |
Shorter of NY and other state's S/L |
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What S/L will apply if P was a resident of NY when the out-of-state claim arose? |
NY S/L will always apply |
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How long does P have to serve process on D after filing? |
120 Days |
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Upon what basis can a court, in its discretion extend time to make service upon D? |
1) Showing of good cause or 2) Interest of justice justifies an extension |
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Can a D waive untimely service of process? |
Yes if D fails to raise the defense of untimely service |
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If a summons does not include a complaint what must be included in order to provide sufficient notice? |
1) Brief statement of nature of action 2) Type of relief being sought 3) If P seeking damages must put amount unless personal injury or wrongful death claim |
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What happens if P commences action wth a "naked" summons (missing a complaint or notice)? |
Lack of personal jurisdiction |
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What are the basic points of the methods of service of process? |
1) Process may be served by any non-party who is at least 18 years old 2) Process may be served on any day but Sunday (unless D is Saturday sabbath observer and P knows) 3) Actual notice is irrelevant in determination of whether P has complied |
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How may a P serve process on a D? |
1) Personal delivery to D - complete upon tender of summons 2) Leave and Mail - Deliver process to D's actual dwelling/place of business plus mail a copy to D's actual dwelling or last known residence 3) Affixing and Mailing - Tape/rubberband to door of actual residence/place of business and mail a copy to actual dwelling or last known residence - must first exercise due diligence Note: Must fule proof of service within 2 days if leave/mail or affix/mail 4) Court Ordered Service - Ex parte motion from court allowing reasonable alternative method 5) Agent Designant - if contract expressly designates someone to receive service 6) Service on Infant/Incapacitated - to designated party 7) Outside NY - Same methods used in NY can be used outside NY, but can also use people authorized in outside states that aren't authorized in NY |
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How to serve on a corporation? |
1) Personal Delivery - On any officer, any director, any designated agent, any managing agent 2) Service on the NY Secretary of State - for domestic corp or authorized foreign corp personally deliver 2 copies of process to the Office of NY Secretary of State |
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What is the non-traditional method of serving process in NY? |
Mail process to D by first-class mail, enclsing 2 copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender.
Service will only be effective if D signs and returns one of the acknowledgement forms to P within 30 days after D receives the mailed process. |
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What are the three bases for general jurisdiction in NY? |
1) Presence in NY 2) Domicile in NY 3) Corporate D "at home" in NY |
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What are the two bases for specific jurisdiction in NY? |
Claim must be specific to D's NY activity
1) Long-Arm Jurisdiction 2) Non-Resident Motorist Statute |
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How can a party consent to jurisdiction in NY? |
1) Forum Selection clause in contract 2) Corporate license in NY |
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Does service of process while D is present in NY create valid personal jurisdiction? |
Yes |
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What constitutes creating domicile? |
Physically being present somewhere with an intent to remain indefinitely |
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When is a corporation at home in NY? |
When any one of the following 3 NY connections exist: 1) NY is state of incorporation or 2) NY is principle place of business or 3) NY activities of corp are so substantial based on a comparison of NY activities to world and nationwide activities |
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What are the 5 long-arm categories in NY? |
1) P's claim arose from transaction of business in NY 2) P's claim arises from contract arising in NY where D agreed to provide goods or services in NY 3) P's claim arises from D's tortious act in NY 4) P's claim arises from D's tortious act outside NY that causes injury in NY 5) P's claim arises from ownership use or possession of NY real estate |
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What must be true to use the long-arm basis of P's claim arises from D's tortious act ouside NY that causes injury in NY? |
1) D regularly does business in NY, solicits business in NY, or engages in any other persistent course of conduct in NY; or 2) D derives substantial revenue from goods used or consumed, or service rendered, in NY or 3) D expects or should reasonably expect the tortious act to have consequences in NY and D derives substantia revenue from interstate commerce that purposefully includes NY |
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What is the matrimonial long-arm statute? |
When P spouse is a resident of NY jurisdiction can be acquired over D-spouse if 1) NY was matrimonial domicile of P and D shortly priro to their separation, lived together in NY or 2) D abandoned P in NY or 3) D's monetary obligation accrued under an agreement executed in NY or 4) D's monetary obligation accrued under laws of NY |
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What is the only proper method for serving process in matrimonial actions? |
Personal delivery |
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Is PJ required in divorce actions? |
No - all that is required is that P spouse is domicilliary of NY |
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In order to comply with durational residency categories what must P's complaint allege? |
1 of these three: 1) If both parties are NY residents at time of action and grounds arose in NY - no period of prior NY residency required 2) If either party has been a NY resident for a continuous period of at least 1 year immediately prior to the action and NY has any 1 of 3 possible prior links to the marriage: - marriage took place in NY, NY was matrimonial domicile at some point, grounds for divorce action arose in NY 3) If either party has been a NY resident for a continuous period of at least 2 years, sufficient |
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Where is venue proper in a judgment that would affect title or possession to real property? |
County where real property is located |
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Where is venue proper in a judgment other than those affecting title/possession of real property? |
Any county where one of the party lives, if no one lives in NY then P chooses |
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Is improper venue a basis for dismissal? |
No |
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What is D's remedy for improper venue? |
Demand venue change to proper county designated by D - P consents to demand, venue changes automatically - If P objects or fails to respond, D must make motion to change venue and motion will be granted if venue is in fact improper |
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What are discretionary grounds for change of venue? |
1) Convenience of materia witnesses 2) For impartial trial |
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What are defendant's two options for responding to a summons and complaint? |
1) Serve an answer or 2) Make a pre-answer motion to dismiss |
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What does an answer consist of? |
1) Denials of the allegation D wishes to contest 2) Any relevant affirmative defenses 3) Any desired counterclaims 4) Any desired cross-claims |
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In general what happens to an affirmative defense that is not included in the answer? |
Generally they are waived |
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What 3 affirmative defenses are never waived? |
1) Nonjoinder of a necessary party 2) Failure to state a cause of action 3) Lack of SMJ |
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How must an interlocutory paper be served? |
Must be served upon on all parties ordinarily by first class mail |
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What are the time limits for serving an answer? |
1) Personal delivery of process - D has 20 days from delivery 2) D was served with process by first class mail plus acknowledgment - w/in 20 days of mailing acknowledgment 3) Under any other circumstances - 30 days after completion of service |
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What are the 7 defenses that D can assert in a pre-answer motion to dismiss? |
1) Documentary evidence (defense based in legally operative document) 2) Other action pending b/w parties on same cause 3) Want of capacity 4) Non-joinder of necessary party 5) Failure to state cause of action 6) Lack of PJ 7) Lack of SMJ |
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If a pre-answer motion to dismiss is denied what happens? |
D's time to answer is automatically extended - D must serve answer within 10 days |
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How does a persona preserve a personal jurisdiction defense? |
1) Before serving answer make 3211 motion mentioning PJ 2) Put PJ in answer and don't make 3211 motion |
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When does the defendant waive right to assert jurisdictional defect defense? |
If defendant does not make a follow-up motion for summary judgment on that ground no later than 60 days after serving answer |
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What are defendant's options when responding to a summons with notice? |
1) Serve demand for complaint 2) Notice awareness |
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What is D's time limit for serving a demand for complaint or a notice appearance? |
Same as the time limits for responding to a summons and complaint |
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How long does P have to provide complaint after D enters a demand for complaint or a notice appearance? |
20 days |
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Once P timely serves complaint pursuant to demand for complaint or notice of appearance how long does D have to serve answer or 3211 pre-answer motion to dismiss? |
20 days |
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Does a service of a demand for the complaint or a notice of appearance waive jurisdictional objections? |
No |
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What are the steps for joining third party defendant? |
1) File a summons and 3rd party complaint 2) Serve on TPD within 120 days of fling |
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What is the general rule regarding S/L and amending a claim to include a TPD? |
Day of amendment must be within S/L of claim being asserted against 3rd party |
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What is the exception to the general rule regarding S/L and amending a claim to include a TPD? |
P's claim will be deemed interposed on the date date TPD was impleaded if: 1) P's claim against TPD is based on same transaction or occurence and 2) P's claim would have been timely on day of impleader |
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Is an intentional tortfeasor entitled to contribution? |
MBE: Never NY: Available in all tort cases |
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What are the ways to assert claims for contribution? |
1) If P originally joined the tortfeasors as co-D's then assert cross-claims 2) If P omits a tortfeasor, a D can implead the outsider as TPD 3) Tortfeasor may sue TPD in a separate action but collateral estoppel will not apply against TPD |
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What are the rules regarding when a 3rd party can seek contribution for contribution from P's employer in a personal injury case? |
MBE: 3rd party has no right of contribution MY Rule: 3rd party has no right of contribution unless employee had grave injuries then there is right of contribution |
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Will a P's partial settlement of a claim with one tortfeasor discharge claim against others? |
No |
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What is the reduction formula following a settlement with one tortfeasor? |
Any judgment agaisnt a non-settling tortfeasor must be reduced by either: 1) the amount of the settlement or 2) the settling tortfeasor's equitable share of the fault whichever is larger |
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Can a party who settles be sued for contribution? |
No |
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Can a party who settles sue for indemnification? |
Yes |
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What is the deep pockets exception to joint and several liability in NY? |
When a joint tortfeasor is: 1) 50% or less at fault and 2) there are non-economic damages then the joint tortfeasor can only required to pay her own share of non-economic damages. |
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When does the deep pockets exception not apply? |
1) Wrongful-death claim or property-damage claim 2) Tortfeasors who acted with intent or reckless disregard for the safety of others 3) Tortfeasors who released a hazardous substance into environment 4) Drivers and owners of motor vehicles other than police and fire vehicles |
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What papers must a moving party serve on the other party? |
1) Notice of motion - specifies return date 2) Submit affidavit of facts |
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When is a motion made? |
When motion papers are served on other party |
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How much advance notice must be given to opponent on a motion? |
Must serve papers at least 8 days before the return date |
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What are the three reasons for moving by order to show cause rather than the ordinary notice of motion? |
1) Means of accelerating return date where exigent circumstances make usual 8-day advance notice too long 2) Judge can grant immediate temporary restraining order (TRO) 3) Statute which governs the particular motion may require it |
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What are the two effects of service of the copy of the order granting or denying a motion? |
1) Gives effect to the order 2) Starts a 30 day time limit for the appeal |
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What is required if a party wants to make an interlocutory appeal? |
Party must file and serve a notice of appeal within 30 days from the service of the order or judgment with notice of entry |
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Is a losing party required to file an interlocutory appeal? |
No - can wait until after the ultimate judgment |
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What is the remedy for an opponent who is aggrieved by an ex parte order? |
No appeal of the order - must make motion to vacate ex parte order and if denied then appeal the denial |
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What is the standard for a motion of summary judgment? |
No reasonable minds could differ - there is no genuine issue of material of fact |
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What is the outside limit for making a summary judgment motion? |
No later than 120 days from filing of note of issue
Note: can be standing on showing of good cause |
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Can a court review all of the evidence in the record and then grant summary judgment for non-moving party? |
Yes - even if they didn't make a cross motion for such relief |
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What are the 5 provisional remedies available to ensure that P is secure for the ultimate enforcement of a potential judgment? |
1) Attachment 2) Preliminary Injunction 3) Temporary Receivership 4) Replevin 5) Notice of pendency |
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Is a court order required for notice of pendency? |
No |
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When may a P seek attachment? |
When P is seeking money damages and
1) D is an unlicensesd foreign corp or a non-domiciliary residing outside NY or 2) D is about to conceal or remove assets from NY with intent to defraif creditors or frustrate enforcement of a judgment |
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What is the procedure for seeking attachment? |
1) Make motion for orger of attachment 2) Include affidavit showing one of two grounds 3) Include affidavit showing probabilityof success 4) Post bond for D's indemnity |
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When is D entitled to damages with regard to order of attachment? |
1) D wins on merits or 2) Attachment is improperly obtained |
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When is a preliminary injunction proper? |
An equity action in which P's complaint seeks either: 1) Permanent injunction 2) D threatens to harm P's interests in subject matter of litigation |
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What is a temporary receivership? |
When the court appoints a person to manage D's property |
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In what type of action is temporary receivership available? |
1) P must be asserting an equity claim in which specific property is the subject matter of the action and 2) There is a danger that D will injure or destroy the value of the property while the action is pending |
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What is a notice of pendency? |
When an equity action will have a direct effect on real property the filing of a notice of pendency gives record notice to any potential buyers that any interest they acquire in the property will be subordinate to that of P. Makes title unmarketable |
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When does a party in a civil action have a right to trial by jury? |
1) Action seeking solely money damages 2) Replevin 3) Claim of real property 4) Annulment of marriage 5) Divorce action on grounds |
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Must a civil jury be unanimous in making a decision? |
No - must have 5/6 votes |
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Res Judicata |
When a claim against a particular defendant has been brought to a final judgment on the merits all other claims by the P against that D are barred if they arise out of the same transaction or occurence |
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What must be shown for collateral estoppel? |
1) Issue is identical 2) Issue litigated and decided 3) Party against whom asserted had full and fair opportunity to litigate |
